Attached files
FINAL AGREEMENT
JOINT VENTURE AGREEMENT BETWEEN ZERA INVESTMENTS PTE LTD
AND
TOMI ENVIRONMENTAL SOLUTIONS INC
BETWEEN
ZERA INVESTMENTS PTE LTD
AND
TOMI ENVIRONMENTAL SOLUTIONS INC
WHEREAS:
THIS JOINT VENTURE AGREEMENT is entered into the 17th day of January, 2011, by
and between TOMI Environmental Solutions, Inc, a corporation organized and
existing under the Laws of Florida with its principal place of business at
9454 Wilshire boulevard, Suite G1, Beverly Hills, California 90212, hereinafter
referred to as "TOMI-US" and ZERA INVESTMENT PTE LTD, a Singapore private
Investment/Holding Company, located at 33 Ubi Avenue 3 #04-27 Vertex Singapore
408868;
a) the parties are joint owners of TOMI Environmental Solutions-
Singapore Pte. Ltd (Co.Reg.No.:201014937M) with TOMI-US
being a majority partner. , TOMI Environmental Solutions-
Singapore Pte, Ltd is a Singapore incorporated private limited
company, for the purpose of business hereinafter defines.
b) TOMI is a corporation duly organized, validly existing and in good
standing under The Laws of the State of Florida with corporate
power to carry on its business as it is now being conducted.
c) ZERA INVESTMENT PTE, LTD is a private limited
investment/holding company duly organized, validly existing.
And in good standing under the laws of the Country of Singapore.
d) TOMI-US is a Global Green Indoor Air Remediation Company
providing equipment, technology, know how, methodologies,
licenses, R&D, Marketing and advertizing materials and concepts,
training programs, training and application protocols, and in good
standing with the Indoor Air Quality Association, The International
Ozone Association , The United States Green Building Council.
e) ZERA Investment is a investment / holding company with the
background and expertise in the Indoor environmental field and
members of certain Associations within the country of Singapore.
ZERA as has at its discretion varies amounts of capital that it will
make available to TOMI-US along with many professional
connections in the Asia-Pacific Rim for future business. ZERA
declares that is possesses the resources to promote, set up meetings
for the sale and use of the Services and products of TOMI
technology and Methodology and is desirous of selling such
services and products as authorized herein
f) Term of this Joint Venture
This Joint Venture shall commence on execution of This Agreement by the
parties and shall continue until dissolved by mutual consent of the parties
or Terminated as provided for in this Agreement.
The parties are desirous of entering into this agreement to
regulate the affairs among them with regard to the Company, TOMI
Environmental Solutions- Singapore Pte. Ltd and the relationship
among them as parties and or shareholders. In consideration of the
promises made between the parties herein and intending to be legally
bound agree as follows:
1. DEFINITIONS AND INTERPRETATIONS
1.1 In this agreement unless the context otherwise requires the
following expressions shall have the meaning set out against
them:
1.1.1 "Agreed portion" means portion of the shareholders
shareholdings in the issued capital of the Company as
set out in clause 5.1 or such other portion as will reflect
shareholders respective shareholdings from the time
being in the share capital of the company
1.1.2 "Article" means Article of Association of the Company
1.1.3 "Board" means Board of Directors of the Company
1.1.4 "Business" means the business of the company as
referred to Clause 3.
1.1.5 Company means "TOMI Environmental Solutions -
Singapore Pte. Ltd." a joint venture company as
referred in Clause 2.
1.1.6 "Directors" means each or all of the Members of the
Board as the context may require
1.1.7 "Holding Company" has the same meaning as set out in
Section 5 of the Companies Act (Chapter 50)
1.1.8 "Parties" means the Shareholders and "Party" refers to
any shareholder as the case may be
1.1.9 "Persons" means a firm, company or other a body of
persons
1.1.10 "Shareholders" means TOMI Environmental Solutions
Inc and ZERA Investments Pte. Ltd.
1.1.11 "Shares" means ordinary share of One Singapore Dollar
only each in the capital of the Company
1.1.12 "Subsidiary" has the same meaning as set out in the
Companies Act (Chapter 50)
1.2 Any reference in this agreement to Parties or the Company
shall include their respective representatives.
1.3 Any reference to one gender includes the other gender and the
singular includes plural and vice versa.
1.4 The headings in this agreement are intended solely for
convenience of reference and shall not be taken read or
construed as essential parts of this agreement.
2. FORMATION
2.1 The parties shall forthwith upon the execution of this
agreement procure the shares in the Company in such a manner
as to enable TOMI Environmental Solutions. Inc to have
majority shares. The procurement of the Company's shares by
the respective parties shall be as follows:
2.1.1 TOMI Environmental Solutions, Inc....55%
2.1.2 ZERA Private Limited ................45%
2.2 Based on the Company's authorize and paid up capital of
Singapore dollars ten thousand only (S$10,000) the parties will
procure the shares in the following manner:
2.2.1 TOMI Environmental Solutions U.S.A., Inc.......S$5,500
2.2.2 ZERA Private Limited...........................S$4,500
2.3 The Memorandum and Article of Association is set out at Annex A.
3. BUSINESS OF THE COMPANY
3.1 The object of the Company is to carry on the business of
3.1.1 Procurement and sale of environmental engineering
products developed, introduced, presented and Licensed
by TOMI Environmental Solutions, Inc, along with
certain technology owned or protected under trademark
laws from L-3 Communications and others for
distribution in markets in the Asia-Pacific Region.
3.1.2 Research and Development on environment and clean
technologies.
3.1.3 Procurement, sale and distribution, order fulfillment,
supply chain management, logistic support of TOMI
Environmental Solutions,, Inc's products and licensed
products.
3.1.4 Conducting and organizing training programs and
seminars for operators, supervisors ,and management
staff on environmental services and building
environmental management
3.1.5 Developing consultancy expertise in the management
and audit of performances or standards for indoor air
quality
3.2 The business shall be conducted in the best interest of the
Company based on sound commercial profit making principles
so as to generate sound maintainable profits available for
distribution.
3.3 The Company may from time to time extend the nature area of
its business and/or carry on such other business with the prior
written approval of its Board of Directors.
3.4 Any dealings with the Company and the Parties or any
associates of such person in relation to the business shall be on
normal arm's length terms negotiated between the relevant
parties and no such person shall claim or be entitled to any
preferential treatment in relation thereto by reason of
relationship of such persons under this Agreement or any
Parties in connection with the Company.
4. BOARD RESOLUTIONS
As soon as practical, the Shareholders shall procure the holding of
a Meeting of the Board and shall thereat pass the following
resolutions:
4.1 The appointment of the Wee Ah Kee and Michael Lim as
Directors of the Company
4.2 The appointment of TKS Management Services as the
Company Secretary
4.3 Adopting 31st December 2010 as the close of the first
accounting period for the Company and 31 December each year
thereafter as the closing date of the subsequent accounting
period
4.4 Appointing Overseas Chinese Banking Corporation as bankers
of the Company
4.5 Designating the registered office of the Company and
4.6 Conducting such other business as may be agreed between the
shareholders or as may be usual at a meeting of the Board
5. BOARD OF DIRECTORS
5.1 The Board shall comprise up to five (5) Directors who shall be
appointed in a manner specified in this agreement and the
Articles.
5.2 The Shareholders agree that:
5.2.1 the right of appointment of the Directors shall include
the right at any time to remove from office any such
persons appointed by the Appointer and appoint another
person in his place and from time to time determine the
period such persons shall hold office as Director.
However at no time shall TOMI Environmental
Solutions, Inc be represented by less than three (3)
board members.
5.2.2 where one (1) person reasonably requests for the
replacement of a Director appointed by any other
Shareholder the other shareholder shall not
unreasonably refuse to remove that Director from the
Board and replace him with another Director;
5.2.3 any appointment or removal of a Director as aforesaid
shall be made in writing and be signed by the appointer
or the duly authorized officer of the appointer and shall
take effect as from the date of its receipt at the office at
the Company or on the date of the appointment
specified in the notice , whichever is later. Any other
mode of appointment or removal of Director shall not
be valid.
5.2.4 A Director, May at any time with the written consent of
his appointer, appoint any other person (including
another Director) to be his alternate and to remove such
alternate Director. All appointments and removal of
alternate Directors made by any Director shall be in
writing under the hand of the Director making the same
and shall take effect as of the receipt at the registered
office of the Company or on the date of the appointment
specified in the notice whichever is later. The
appointment of an alternate Director shall determine
ipso facto if his appointee ceases for any reason to be a
Director
5.3 Additional Directors identified from the following areas may
also be appointed to the Board provided that such Directors
shall at any time be limited to five (5) :
5.3.1 academics from tertiary institutions
5.3.2 government officers
5.3.3 industry partners in the environmental services industry
5.3.4 training institutions
5.3.5 National Trade Union Congress
5.3.6 Representatives from relevant trade associations and/ or
5.3.7 Building owners
5.4 The quorum for all meetings of the Board shall be two (2)
Directors with at least one of those Directors being from TOMI
Environmental Solutions, Inc each present by telephonic means
or personally or by his appointed alternate. For the purpose of
determining whether there exist a quorum, there shall be
counted in the case of a resolution agreed by the Directors in
telephone communications, all such directors and, in the case
of meeting of Directors , in addition to the Directors present at
the meeting, any Director in telephone communication with the
meeting.
5.5 Each Director shall have one (1) vote. If the alternate Director
shall be himself a Director his voting rights shall be
cumulative but he shall count himself only as one (1) for the
purpose of determining if a quorum is present.
5.6 A Director shall not be prohibited from voting or being counted
in a quorum at any meeting of the Board in respect of any
contract or arrangement in which he is or may be interested
provided he has disclosed the nature of his interest.
5.7 A resolution to be carried by the Board must be approved by
the majority of the votes cast. In case of an equality of votes,
the Chairman shall have a casting vote. A resolution signed by
the majority of the Directors for the time being shall be valid
and effectual as if it had been a resolution passed at a meeting
of the Board duly convened and held. . For the purpose of this
clause 'IN WRITING "AND SIGNED" include facsimile
communication.
5.8 A meeting of the Board shall be held at least once every three
(3) months. At least 14 working days' notice in writing of each
meeting of the Board shall be given to each Director of the
Company at the address from time to time provided by him to
the Company for such purposes and such notice shall be
accompanied by an agenda of the matters to be considered at
the meeting. No decision shall be taken on any matter at a
meeting of the Board unless of notice of such matter shall have
been given in the manner aforesaid or waiver of such notice has
been given in respect of such matters by all the members of the
Board.
6. MANAGEMENT OF THE COMPANY
6.1 The management of the Company shall be vested in the
Executive Director who shall at all times be responsible and
subject to the control of the Board.
6.2 The Executive Director shall enter into a service contract with
the Company. The terms and conditions of such a contract must
be approved by the Board.
6.3 The Company may also establish technical and management
committees and delegate to such committees the power and
authority to formulate policies, guidelines and directions for
the harmonious and successful management of the Company.
Any Committee so formed shall in the exercise of the powers
so delegated conform to any regulations that may be imposed
on them by the Board.
7. CONDUCT OF THE COMPANY AFFAIRS
7.1 The Parties shall exercise all rights available to them in
relation to the Company to procure ( so far as they are able to
do so) during the term of this agreement:
7.1.1 the business of the Company and its subsidiaries
consists of the Business
7.1.2 the Parties shall be given full opportunity to examine
the books and the accounts kept by the Company and its
subsidiaries and are supplied with all relative
information including management accounts, operating
statistics, and such other trading and financial
information in such form as they reasonably require to
keep each of them properly informed about the business
of the Company and its subsidiaries and generally to
protect their interests;
7.1.3 the Company complies with the provisions of its
Memorandum and Articles of Association;
7.1.4 the Memorandum and Articles of Association of the
Company are not altered and not further articles or
resolutions inconsistent with them are adopted or
passed unless the Parties agree in writing;
7.1.5 any Company which becomes a Subsidiary in the Asian
-Pacific market of the Company adopts new articles of
association in a form approved by the Parties in
writing; The Company may not form any subsidiary
outside of the Asian-Pacific market.
7.1.6 all cheques drawn by the Company in excess of
Singapore dollars ten thousand (S$10,000) are signed
jointly by the Executive Director and any one of the
other Directors;
7.1.7 Board meetings of the Company and each of its
subsidiaries are convened , at regular intervals, not
exceeding three (3) months , by not less than fourteen
(14) days notice in writing accompanied by an agenda
specifying the business to be transacted ; and
7.1.8 The Board determines the general policies of the
Company and each of its subsidiaries (subject to the
express provision of this agreement) , including the
scope of their respective activities and operations and
the Board reserves to itself all matters involving major
and unusual decisions.
8. MATTERS REQUIRING THE CONSENT OF ALLPARTIES
8.1 The Shareholders shall exercise available to them in relation to
the Company so as to procure that neither the Company nor any of
its subsidiaries without the prior written consent of all Parties:
8.1.1 creates any fixed or floating charge , lien ( other than a
lien arising by an operation of law) or other
encumbrance over the whole or any part of its
undertaking , property or asset, , except for the purpose
of securing indebtedness to its bankers for the sums
borrowed in the ordinary and proper course of the
Business;
8.1.2 makes a loan or advance of any amount or gives credit (
other than the normal trade credit) to any Persons, apart
from the deposit with bankers;
8.1.3 sells, transfers, lease, assigns or otherwise disposes of a
material part of its undertaking, property or assets (or
any interest in them) , or contracts to do so otherwise
than in the ordinary and proper course of business ;
8.1.4 enters into a contract , arrangement or commitment
involving expenditure on capital account or the
realization of capital assets if the amount or the
aggregate amount of the expenditure or the realization
of the company and all of its subsidiaries would exceed
Singapore dollars fifty thousand (S$50,000) in one (1)
year or in relation to any one project ; for the purpose of
this paragraph the aggregate amount payable under an
agreement for hire, hire purchase or purchase on credit
sale or conditional sale terms is to be treated as capital
expenditure in the year in which the agreement is
entered into;
8.1.5 appoints or dismiss a Director except in accordance
with the rights conferred on the shareholders under
Clause 5 to appoint and remove Directors;
8.1.6 appoints a Committee of Directors or delegates any
powers of the Directors to a Committee;
8.1.7 takes or agrees to take a lease hold interest in or license
over a land;
8.1.8 issues any shares or creates any new shares , except as
expressly permitted under this agreement or by the
Company's Articles of Association;
8.1.9 consolidates , sub divide or converts any of the
Company's share capital ;
8.1.10 issues renounceable allotment letters or permits any
Person entitled to receive an allotment of the shares to
nominate another Person to receive the allotment
except on terms that no renunciation or nomination
shall be registered unless the renouncee or Person
nominated is approved by the Board;
8.1.11 creates or acquires a subsidiary or dispose of any shares
in a subsidiary;
8.1.12 enters into partnership or profit sharing agreement;
8.1.13 does or permit to be done any act or thing whereby the
Company may be wound up ( whether voluntarily or
compulsorily ) , in accordance with the terms of this
agreement;
8.1.14 issues security convertible into shares or debentures , or
share warrants or options in respect of Shares;
8.1.15 enters into a contract or transaction except in the
ordinary and proper course of businesses on arm's
length terms;
8.1.16 acquires , purchase or subscribe for shares, debentures ,
mortgages or securities ( or any interest in any of them)
in any Person;
8.1.17 creates a contract or obligations or renews or varies the
terms of an existing contract or obligation , to pay
money or money's worth to any member of the
Company or to the Holding Company of a member or to
any other subsidiary of a Holding Company or to any
Person as nominee of a member or a relevant Holding
Company or Subsidiary;
8.1.18 holds a meeting of the Parties or purports to transact
any business at a meeting unless there are present duly
authorized representatives or proxies for each of the
Parties.
9. FINANCE
9.1 Subject to the Articles or the decisions of the Board , the
Shareholders agree that any capital required by the Company
for the Business and new projects of the Company shall be
provided by :
9.1.1 firstly , by application for grant and/ or subsidies from
the relevant governmental or statutory bodies and
agencies; and
9.1.2 secondly , by credit facilities from banks and other
financial institutions on the strength of the Company's
assets and profitability; and
9.1.3 thirdly, by way of loans from Parties or Shareholders in
proportions which reflects their respective
shareholdings in the Company at the date on which such
loans are to be made; and
9.1.4 fourthly , by the Shareholders by way of further capital
contributions in proportions which reflect their
respective shareholdings in the Company at the date on
which such contributions are to be made.
9.2 Save as provided in Clause 9.1 , none of the Shareholders
undertakes to provide any loan or share capital to the Company
nor to give any guarantee or indemnity in respect of any of the
Company's liabilities or obligations.
10. DIVIDEND POLICY
10.1 profits shall be available for distribution as dividend by the
Company on a quarterly basis based on management
accounting, However TOMI-US may elect to allow 25
percent of its quarterly profits to be held back for additional
operating expenses within the first financial year of the
commencement of Business;
10.2 Subsequent financial years after the commencement of
Business, where there are profits available in any such
financial year the Parties shall procure that in the absence of
agreement to the contrary, that at least twenty-five percent
from ZERA and twenty-five percent (25)from TOMI-US(25)
of such profits subject to a maximum of two hundred
thousand Singapore dollars (S$200,000) shall be retained by
the Company for the purpose of the Business. The balance of
such profits available for distribution and shall be distributed
by way of cash dividends by the Company.
10.3 Any Dividend shall be distributed ten days after the close of
the quarter. In deciding whether in respect of any financial
year the Company has any profits available for distribution
the Parties shall procure that the auditors of TOMI-US shall
certify whether such profits are available or not and the
amount thereof (if any) . In giving such certificate the
auditors shall act as experts and not as arbitrators and their
determination shall be binding on the Parties.
11. EXERCISE OF VOTING RIGHTS
11.1 Each Shareholder shall :
11.1.1 exercise all voting rights and powers available to it in
relation to the Company so as to give full effect to the
terms of this Agreement , where appropriate , the
carrying into effect of the terms as if they were
embodied in the memorandum and articles of
association;
11.1.2 procure that the Directors nominated by it support and
implement all reasonable proposals put forward at
Board and other meetings of the Company for the
proper development and conduct of the Business as
contemplated in this Agreement;
11.1.3 procure that all third (3rd) parties directly or indirectly
under its control refrain from acting in a manner which
hinders or prevents the Company from carrying on the
Business in a proper and reasonable manner; and
11.1.4 generally use its best endeavors to promote the
Business and the interest of the Company and its
Subsidiaries
12. SALE AND TRANSFER OF SHARES
Save as otherwise expressly provided in this agreement , none
of the Parties shall be entitled during the term of this
agreement to sell, transfer, charge, encumber, grant options
over or otherwise dispose of any of the Shares or any beneficial
interest in any of the shares now owned or to be acquired after
the date of this Agreement by it in the Company under or
pursuant to this Agreement of by virtue of its shareholdings in
the Company except with the prior written consent of the other
parties and in compliance with the provision of the Articles
unless TOMI-US is mandated by banking or regulatory rules or
laws.
13. TERMINATION
13.1 This agreement shall continue in full force and effect until
the termination in accordance with the provision of this
clause. Termination shall not affect any provision of this
agreement expressed to have effect after such termination
or any rights which any party may have against another
party subsisting at the time of termination.
13.2 Any of the parties shall be entitle to terminate this
agreement forthwith by notice in writing (but not after
thirty (30) days of the event in question first coming to the
attention of the party entitled to give notice) if any of the
events set out below shall occur. Such notice shall be served
upon the party to which the event or events related and
copies of such notice shall be given to all other parties to
this Agreement. The effect of the notice shall be to
terminate this Agreement as between the defaulting party
and the remaining parties, but this Agreement shall
continue in full force and effect as between such remaining
parties (if more than one (1) but not otherwise. The
relevant events are, if :
13.2.1 one party shall commit any material breach of
any of its/ his obligations under this
Agreement and shall to remedy the breach (if
capable of remedy) within forty-five (45)
days after being given notice by any of the
other parties to do so; or
13.2.2 any party, being a company, shall go into
liquidation whether compulsory or voluntary (
except for the purpose of a bona fide
reconstruction or amalgamation with the
consent of the other party or parties , such
consent not to be unreasonably withheld ) or
any party shall have an administrator
appointed or shall have a receiver .
administrative receiver or manager appointed
over any part of its assets or undertaking; or
13.2.3 any party , being an individual, shall be adjudged
bankrupt or shall die or become a patient for the
purpose of any statute relating to mental health ; or
13.2.4 There shall be any change in the control of any party.
13.3 This Agreement shall terminate in respect of any party (but
shall continue with the other parties if more than one (1) but not
otherwise) , if , at any time as a result of a transfer of shares made
in accordance with this Agreement ( including, without limit,
compliance with the provision of Clause 12 ) that party holds no
shares in the capital of the company.
ARBITRATION
Any controversy or claim arising out of or related to this
Agreement, any addenda hereto, or any breach thereof, shall be settled by
mandatory binding arbitration in accordance with the rules and procedures
of the American Arbitration Association ("AAA") in California. The
award for the arbitrator may be enforced by any court having proper
jurisdiction thereof. The award of the arbitrator shall be final and binding
upon the Parties. The costs of such arbitration (excluding the attorneys'
fees and costs of each of the Parties) shall be shared equally by the
Parties. To the extent permitted by the Law, the Parties hereby jointly and
severally waive any and all right to trial by jury in any action or
proceeding arising out of or relating to this Agreement, or the obligations
hereunder. The Parties each represent to the other that his Waiver is
knowingly, willingly and voluntarily given.
14. CONSEQUENCES OF NOTICE UNDER CLAUSE 13
14.1.1 Upon the service of the notice of termination under
clause 13.2.1 to 13.2.4 the person on whom it is served
shall be required to sell all of its ordinary shares in the
Company to the other parties hereto upon the following
terms:
14.1.2 the Directors shall appoint the auditors for the time
being of the Company to certify the fair value of the
shares being so offered for sale on the basis specified in
Clause 14.4 ( and on the basis that their fees and
expenses in so certifying shall be borne by the
recipient {or as required} );
14.1.3 Upon receipt of the auditor's certificate the Directors
shall circulate a copy of it to TOMI-US who has right
of first refusal, providing TOMI-US is not the breaching
company. If TOMI-US refuses to accept the offering
then it will offered to other parties, as agent for the
Transferor ( as it hereby irrevocably authorizes ) and
specifying a period ( not being less than 14 days) during
which such offer must be accepted;
14.1.4 in the case of competition for the shares being offered
between the parties to whom they are being offered, the
shares so offered shall be sold to acceptors in
proportion ( as nearly as maybe without involving
fractions or increasing the number to any shareholder
beyond that applied for by him) to their existing
holding of shares;
14.1.5 upon receipt by accepting shareholders of their
acceptance to purchase all or any of the shares being so
offered the Transferor on the one part and the accepting
shareholder on the other part shall in respect of the
shares agreed to be taken up be bound to sell and buy
the same respectively and completion of such sale and
purchase shall take place within thirty (30) days thereof
14.2 If there shall be insufficient acceptors of the offer made
under clause 14.1 to ensure the sale of all the
Transferor's share in the Company the Transferor may ,
within fourteen (14) days of the date upon which the
said offer closed, serve a notice on all the other parties
requiring each of them to sell to the Transferor or such
third (3rd) party as the Transferor shall nominate all the
shares in the Company at a fair value and on service of
such notice the other party shall become bound to sell
and the Transferor shall become bound to buy the same
respectively and completion of such sale and purchase
shall take place within thirty (30) days thereof.
14.3 If the Transferor shall serve no notice under clause 14.2
by the expiration of the said period of fourteen days the
parties shall refer such matter to an arbitrator.
14.4 In certifying a fair value of the shares to be sold and
purchased under this clause , the auditors are
irrevocably instructed to value the shares to be bought
and sold at the same proportion of the market value of
the Company as a whole on that date as the relevant
shareholding bears to the whole issued ordinary share
capital of the Company on that date but otherwise they
shall take into account all circumstances that seem
them relevant, including that of the breach of any
provision of this Agreement by the Transferor. In so
acting , the auditors are instructed to act as expects and
not as arbitrators at their decision shall ( save in
respect of manifest error ) be final and binding on the
parties to the sale and purchase for all purpose.
15. EFFECTS OF TRANSFER
15.1.1 In the case of a transfer of the shares by any of the
Parties to a third (3rd) party as provided in Clauses 12
and 14 , the transfer shall , unless otherwise agreed by
the other Parties, be subject to this agreement and take
effect upon:
15.1.2 the execution of a ratification by the transferee in
favour of the other shareholders by which the transferee
agrees to be bound by terms identical , mutatis
mutandis, to the terms of this Agreement (including the
terms of this clause as regards any subsequent transfer
of shares) ; and
15.1.3 the transferee taking over the financial assistance
provided by the transferor to the Company
16. DEADLOCK
16.1 If at any Board meeting, the Directors are unable to obtain
consent of all the parties for any matters specified in Clause
8 and brought up at such meeting, such matters shall be
referred to the Parties for their consideration.
16.2 Where a matter is referred to the Parties and the Parties are
unable for any reason whatsoever to resolve the matter
within one (1) month from the date of the referral, The
Board of Directors of TOMI US as the controlling party
shall make the final decision in that matter.
16.3
17. NON COMPETITION RESTRICTIONS
17.1 None of the Parties shall , while it is beneficiary interested
in any Shares or for a period of three (3) years , do or
permit any of the following without the prior consent of the
Majority Party and or Parent Company TOMI-US:
17.1.1 either solely or jointly with or on behalf of any other
person directly or indirectly carry on or be engaged or
interested ( except as the holder , for investment, of
securities dealt in on a recognized stock exchange) in
any business competing in the Business of TOMI;
17.1.2 solicit the custom of any person who is or has been at
any times been interested in any of the Business of
TOMI or its subsidiaries Shares a customer of the
Business for the purpose of offering to that Person
goods or services similar to or competing with those of
the Business of TOMI;
17.1.3 solicit or entice away , or endeavor to solicit or entice
away , any Director or employee of the Company or of
any subsidiary of the Company , but without prejudice
to the right of the Parties to terminate arrangements
under which any of its employee is seconded to the
Company or subsidiary;
17.1.4 cause or permit any Person directly or indirectly under
its control to do any of the acts or things specified
above.
17.2 Each of the undertaking in clause 17.1 shall be treated as
independent of the other undertakings so that, if one (1) or
more is held to be invalid as an unreasonable restraint of
trade or for any other reason, the remaining undertakings
shall be valid to the extent that they are not affected.
17.3 Whilst the undertaking in Clause 17.1 are considered by the
parties to be unreasonable in all the circumstances, if one
(1) or more is held invalid as an unreasonable restraint of
trade or for any other reason but would have been held valid
if part of the wording has been deleted, the period reduced
or the range of activities or area dealt with reduced in
scope, the undertaking shall apply with such modifications
as may be necessary to make them valid.
18. PROTECTION OF NAME
None of the Parties shall, while the Company or its subsidiaries
carry on the Business or during the three (3) year protected time
after the dissolution of the company or its subsidiaries , use or
permit the use of the name TOMI Environmental Solutions, The
Ozone Man, or TOMI- Singapore, or any similar trading name.
19. NOTICES
19.1 Any notice to be given for the purpose of this Agreement
shall be given in writing and shall either be delivered
personally or send by registered post or telefax to the
respective addresses of the Parties set forth in this
agreement or their respected registered offices at the time
of such notice or at any other address which any of the
Parties hereto may have notified the others in writing.
19.2 A notice shall be deemed to have been served as follows:
19.2.1 is personally delivered at the time of delivery
19.2.2 if sent by registered post , at the expiration of forty
eight (48) hours after the same was delivered into the
custody of the postal authorities; and
19.2.3 if sent by telefax , at the expiry of 12 hours after
dispatch.
19.3 In providing such service, it shall be sufficient to prove that
personal delivery was made or that the envelope containing
such notice was properly addressed and delivered into the
custody of the postal authorities as a registered letter or that
the telefax was properly addressed and dispatched.
19.4 Notice to ZERA shall be sent to:
Mr. Wee Ah Kee
112 Springleaf Avenue, Dalla Vela
Singapore, 8788502
Notice to TOMI Environmental Solutions, Inc shall be sent to:
Legal Department
TOMI Environmental Solutions
9454 Wilshire Blvd
R-1
Beverly Hills, Califormia, 90212
With a copy to:
Harold Paul, Esq
2 North Brisa Fresca Drive
Santa Fe, New Mexico.87506
20. GOVERNING LAWS AND JURISDICTION
This agreement shall be construed in accordance with the laws of
Singapore. The Parties hereby submit that this agreement be
governed by and construed in accordance with the laws of the State
of California, in the United States of America.
21. PERFORMANCE OF ACTS
21.1 The Parties shall do all acts and things , sign and execute,
procure all other necessary persons to execute and do all
such further deed assurances acts and things as may be
reasonably required so that full effect may be given to the
terms and conditions of this Agreement.
21.2 The parties shall undertake with each other to do all things
reasonably within their power which are necessary and
desirable to give effect to the spirit and intent of this
agreement.
22. ASSIGNMENT AND TRANSFER
In the event of any conflict between the provisions of this
Agreement and the Articles by a court or competent jurisdiction to
be invalid, void or unenforceable the remaining provisions shall
nevertheless continue in full force without being impaired or
invalidated in any way. This Agreement shall prevail and the
Parties shall wherever necessary procure the Articles to be
amended to reflect the provisions of this agreement.
23. CONFIDENTIALITY
(A) All of the parties attest that they have a signed a Non-
Disclosure and Non-Compete agreement (attached as
exhibit B) the parties also acknowledge and agree that
during the term of this agreement the parties of ZERA and
its present and future representatives shall have access to
and become acquainted with financial, personnel, sales,
proprietary information, technical and other information
regarding compilations, programs, devices, techniques,
operations, plans and process that are owned by TOMI,
actually or potentially used in the operation of TOMI's
business, or obtained from third parties under an agreement
of confidentiality, and that such information constitutes
TOMI's "trade secrets".
(B) ZERA and its representatives specifically agree not to
misuse, misappropriate, or disclose in writing, orally or by
electronic means, any trade secrets or proprietary
information directly or indirectly, to any other person or
use them in any way, either during the term of this
agreement or at any other time thereafter, except as is
required in the course of business.
(C) ZERA and its representatives acknowledge and agree that
the sale of unauthorized use of disclosure in writing, orally or by
electronic means, of TOMI's trade secrets obtained by ZERA
under this agreement, including information concerning TOMI's
actual or potential work, TOMI's methodology, its services, or
products, the facts that any such work, services, or products are
planned, under consideration, or in production, as well as any
description thereof, constitute unfair competition. ZERA and its
representatives promise and agree not to engage in any
competition with TOMI, either during the term of this agreement
or at any other time thereafter for a period of three (3) years in its
geographic location or any other location in the world.
(a) ZERA and its representatives further agree that all files,
records, documents, specifications, equipment, software,
and similar items whether maintained in the hard copy or
on-line relating to TOMI's business, whether prepared by
TOMI, ZERA or others, are and shall remain exclusively
the property of TOMI and that they shall not be removed
from the premises of its offices or TOMI-Singapore's
offices or, if kept on-line, from the computer systems of
TOMI only with the express prior written consent of
TOMI's Board of Directors.
ZERA and its representatives acknowledge and agree that the
names and addresses of TOMI's and TOMI's Singapore's
customers constitute trade secrets of TOMI and that the sale of
unauthorized use or disclosure of any of TOMI's trade secrets
obtained by ZERA or its representatives constitutes unfair
competition.
ZERA and its representatives promise and agree not to engage in
any unfair competition with TOMI. None of the parties shall
divulge to any Persons ( other than those whose province is to
know it or with proper authority ) or use for any purpose of the
trade secrets or confidential information or any financial or trading
information relating to the other parties or company or any of its
subsidiaries which it acquires as a result of entering into this
agreement. Each of the parties shall endeavor to prevent its
employees from doing anything which, if done by a party, would
be a breach of this clause. This restriction shall continue to apply
after the expiration or termination of this agreement without limit
in point of time but shall cease to apply to secret or information
which comes into the public domain through no fault of the parties
concern.
24. Ownership of Customer Records
(A) All records documented in any form i.e. digitally,
electronically recorded, written or any other form that
contains the accounts of customers, route books, and any
other records and books relating in any manner whatsoever
to the customers of TOMI, whether prepared by TOMI-
SINGAPORE personnel or otherwise, shall be the exclusive
property of TOMI regardless of who actually possesses the
original book or record.
(B) All such books and records shall be immediately returned
to TOMI-US by TOM-Singapore on termination of this
Joint Venture.
24. EXCLUSION OF PARTNERSHIP
Nothing herein shall be deemed to constitute any partnership or
agency between the parties and none of the parties shall have any
authority to act or assume any obligations or responsibilities on
behalf of the other parties.
25. WHOLE or SOLE AGREEMENT
This agreement contains the whole agreement between the
Shareholders with respect to the subject matter hereof and
supersedes any prior expression of intention or understanding with
respect to this transaction and all previous agreements, specifically
the agreement between TOMI-US and TOMI-Singapore ,Dated
November 21,2010 is null and void. The parties in respect of
such matters and each of the parties to this Agreement
acknowledges that in agreeing to enter into this Agreement they
have not relied on any representation or warranties except for those
contained in this agreement.
26. SEVERABILITY
In the event of any provision or part thereof of this Agreement is
declared by any judicial or other competent authority to be void
voidable illegal or otherwise unenforceable in any respect , it shall
be deemed to be deleted from this agreement and shall be of no
force or effect as if such provision or part thereof had not
originally been contained in this Agreement PROVIDED THAT
this clause shall not apply where the provision in question or part
thereof which is declared to be void voidable or illegal or
otherwise unenforceable is fundamental to the performance of this
Agreement and the effect of such declaration is to defeat the
original intention of the Shareholders. The remaining provisions
shall never less continue in full force without being impaired or
invalidated in any way
27. AMENDMENTS EXTENSIONS AND WAIVERS
This Agreement shall not be varied in any respect except by
instrument in writing stating the amendment or modification signed by
all the parties.
IN WITNESS THEREOF this Agreement has been entered into
the day and year first above written.
SIGNED BY:
DR.HALDEN S. SHANE )
CEO and Chairman )
For and on behalf of )
TOMI Environmental Solutions )
SIGNED BY:
Mr. WEE AH KEE and )
Mr. ANDREW LEONG TZIN MIN )
Mr. MICHAEL LIM TIONG HOE )
For and on behalf of )
ZERA Investments Pte Ltd )
(a holding company) )
In the presence of )
